Revocation is the legal process that allows for anyone to apply for the removal of a registered trade mark. The revocation may be for the removal of the entire registration or for some of the services or goods that it covers.
The reasons for the revocation may be either as result of non-use of the trademark or for reasons unrelated to non-use.
Regarding revocation for non-use, S46 of the Trade Mark Act 1994 stipulates the grounds under which a registered trademark may be revoked. In terms of this provision, revocation on the grounds of non-use may apply where the trade mark has not been used in the five years since the trade mark was registered, or for any uninterrupted period of five years and there are no proper reasons for non-use. This application can be made by anyone at any time after the trade mark has been registered, for a period of at least five years. Where such an application is sought, the burden is placed on the trademark owner to prove that the mark was used or that there are proper reasons as to why the mark has not been used.
For revocation for reasons other than non-use, such an application can be made on the basis that either the trademark has become generic as a result of the common use of the name within the trade in which the goods or services are used or because the use of the trademark is likely to mislead the public. This application can be made at any time after the trade mark has been registered.
It is important for trade mark owners to ensure that upon registering a trademark, use is made of this mark, where this is not possible, proper reasons for non-use should be provided. In addition, owners should also ensure that their marks are easy to distinguish and also will not have the possibility of being misleading as to their quality or geographical origin of the goods or services.
By Gcobisa Bonani, a law student on work experience at Lawdit Solicitors